1406288 (Refugee)

[2015] AATA 3535

1406288 (Refugee) [2015] AATA 3535 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1406288

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Meena Sripathy

DATE:29 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 October 2015 at 11:48am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Thailand applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] March 2014.

3. The issues in this review are whether the applicant has a well-founded fear of persecution in Thailand for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Thailand, there is a real risk that she will suffer significant harm.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In her application form, the applicant indicates she is a [age] year old single woman from Thailand. She speaks, reads and writes Thai and English.  She holds a Bachelor [degree] from [a] University, Thailand.  She provided her occupation as student and provided no details of employment. Her family comprises her mother and father who she claims are divorced. 

6. In her reasons for leaving her country, the applicant states that she left Thailand in 2011 to study English in Australia. Her main intention at that time was to enhance her English skills but she also wanted to leave Thailand for a short period to validate the political situation there and the difficult circumstances her family was in because of the political conflict. Her family was involved with the United Front for Democracy against Dictatorship (UDD) or Red Shirts, which formed in 2006, to replace the aristocratic policy of Thai Ammatayathipatai. Her family was involved believing they stood for equality for all people. The party recruited many people from their area as well as other rural areas and provided financial support to lure them to participate in protests.  From 2009 the protests became more and more violent and the applicant began to feel more uncomfortable with it.  However they were obliged to participate because they had taken money from the group. From the moment they tried to find ways to leave the group they were told they had to return the money plus interest and they did not have any money left. The demonstrations continued through 2009 and 2010. Around this time the applicant decided to come to Australia to travel, and came here on a Tourist visa in March 2010. While in Australia the demonstration was very violent, with more than 2 dozen killed and 900 injured. The group was very unhappy with the applicant’s family and that the applicant left the group to come to Australia in March 2010.  When she returned in June 2010 she was accused by them of being selfish and turning her back on them.  She was hit on the face and punched in the stomach, and threatened that her safety could not be guaranteed if she disappointed the group again. She was very afraid but did not approach the police as the Red Shirt leader in her area is a friend of the police.

7. The applicant decided to turn her back against the Red Shirt group and focus on her study and so she travelled to Australia to study in 2011. They approached her family looking for her. They wanted her to return to them or return the money given to her family together with 20% interest, which is a huge amount and they were unable to return it in a short period of time.  They threatened her life, and threatened to put her into prostitution to earn money for them.  The applicant is fearful of returning to Thailand when the political situation is still unsettled and the Red Shirts are in power.  She fears they will kill her or make her work as a prostitute. She fears they will sexually abuse her.  Her father has experienced physical and verbal assaults.  She fears harm from the Red Shirt group.

8. The applicant also submitted a statement, dated 26 February 2014, in support of her application from her father, [together] with banks statements. He explained that his family joined the United Front for Democracy against Dictatorship in 2006 because they promised a better quality of life and equality, and also it gave them good connection with local people in power. They were required to participate in group gatherings and attend demonstrations. But when the situation got more serious in 2009, he did not want his family to be involved anymore. He tried to withdraw from the group but was pressured by the leaders to continue, which they did throughout 2009.  He was told they had to return the money they were given. In 2010 the violence was very apparent and he felt he had no choice but to send his daughter overseas to protect her, which he did in March 2010. This action upset the group and when she returned, they hit her in the face and punched her in the stomach.  In 2011 he sent his daughter to study in Australia to escape from the Red Shirt group.  When she left, his family stopped attending the demonstrations and gatherings.  They sent people to ask them why, and later they returned with guns and tried to get money from him. They took his wife’s jewellery and asked where his daughter was. When the Red Shirts became the government in 2011, his worst fears came true, as now they are above the law and can do anything. In 2013, the political crisis started again and they came again to recruit people and asked them to support them again. The applicant’s father refused.  They urinated in front of his house and threw a bag of stools at the gate. They intimidated them.  He lives in fear.  He believes his daughter is the target.

   Department interview

9. The applicant was interviewed by an officer of the department [in] March 2014 and an audio recording of the interview is included in the Department file. Details of the information provided by the applicant at the interview are set out in the delegate’s Decision Record, a copy of which was provided by her to the Tribunal.  The Tribunal has listened to the recording.

10. The applicant appeared before the Tribunal to give evidence and present arguments on 4 November 2014 and again on 19 October 2015, following the reconstitution of the matter to the current Tribunal. The Tribunal hearings were conducted with the assistance of an interpreter in the Thai and English languages.  A summary of relevant evidence she gave at the hearings is provided below.

    Hearing on 4 November 2014

11. The applicant confirmed her family composition, address and previous travel.  She confirmed that she is financially supported by her parents as she does not have work permission in Australia.  She ceased study one month after arrival and has not studied since that time.  She explained that she was unable to study because she was worried about the situation in Thailand and her parents.  When asked if her parents had faced any threats recently, she said that they had not since the coup in May 2014.  She is in regular contact with her parents, 2-3 times a week. 

12. The applicant lived in Bangkok for the four years while she was studying at university from [year] until [year].  She said that she was granted a Tourist visa for Australia in January 2009 but did not travel at that time because it was not convenient to her. 

13. She said her parents have not repaid the money given to them by the UDD (Red Shirts).  They owe about 1 million bhat, which is essentially the whole amount they were given.

14. When asked if there was anything she wished to add or change to her claims, she said at the Department interview she was asked why the family continued to receive money from the UDD in the period that she said they wanted to leave the group.  She wished to clarify that she was considering leaving the group but as she was still in Thailand at that time, she continued to participate in their activities and that is why the money was paid. 

15. The Tribunal put to the applicant its concern about delays in her actions that appear to be inconsistent with her having a genuine fear in Thailand.  It put to her that she was granted a visitor visa in February 2010 but did not leave Thailand until March 2010, then she was granted a second visitor visa in August 2010 and did not leave Thailand until October 2010.  She was granted a student visa in January 2011 but did not travel to Australia until March 2011.  Then she did not lodge her protection visa application until October 2013, some two and a half years later.  The Tribunal also noted that her student visa was cancelled in June 2011 but she did not apply for the protection visa until October 2013. It put to her that this pattern of behaviour may suggest she was not in a rush to leave Thailand or apply for protection.  In response the applicant explained that at the time she was granted the first visitor visa in 2009, she had joined UDD but it was not violent.  It was after the riot in April 2009 when the Asian Summit was cancelled that she began to become disillusioned with the group.  In February 2010 when her visa was granted she had an exam and could not leave immediately. The same was the case in August 2010.  She had an exam in September and could not leave until October.  In 2011, it was her last term of university and she had to complete that before travelling to Australia.  Regarding the delay in lodging the protection visa in Australia, she said she didn’t know she could apply for protection so she stayed on a student visa.  When it was put to her that her student visa was cancelled in June 2011, and why did she not approach the department to explain her situation, she said she didn’t know what path to take. She said she just wanted to be away from Thailand at that time.   She only later learned about the protection visa option when a friend suggested to her to see an agent. 

16. The Tribunal put to her its concern that her actions to return to Thailand following absences on two occasions in 2010 suggest she did not at that time have a genuine fear.  It pointed out that her actions were not consistent with her claim that she was threatened and assaulted by the Red Shirts in 2009 and 2010.  In response the applicant explained that firstly she returned because she had to finish her education.  Secondly, she was still in the group and believed that while she was in the group they would not harm her.  The Tribunal put to her that her claims indicate she was threatened by the group in 2009, but then travelled to Australia in March and returned in June 2010.  She then claimed that she was attacked in June 2010, and following this she travelled again to Australia in November 2010.  She stayed in the country for a relatively long period after the claimed attack, and then when she left in October, she voluntarily returned one month later.  This casts doubts as to whether her evidence about the attack is truthful. 

17. The applicant said that she began enquiring about leaving the group after the Asian Summit was cancelled in 2009. She was told then that she would have to return all of the money plus interest and even then there was no guarantee she could leave the group. In 2010 she left Thailand on a Tourist visa, at that time she disagreed with the group’s meetings and tactics which impacted negatively on Thailand’s economy.  But she had to go back to Thailand to finish her studies because she believes education opens minds and is a way to gain knowledge. She was assaulted because UDD was not happy that she left during the time they planned to close Bangkok – they tried to coax her using money and also threatened her if she failed to attend.  She travelled to Australia in October 2010 on a Tourist visa to avoid the violence. Because it was a short period no one knew she was here.  She returned to finish her last term of university.  People thought she was still in the group because she continued to attend events. She made her decision to leave when she finished her study.  She could not finish her study in Australia because the situation got worse and worse.

18. The applicant confirmed that her parents joined the UDD in 2006, and she joined in 2009.  Her mother was close to a political representative of [UDD]. He is her [details deleted].  The applicant produced a photo of her mother with this man, and explained that he is a member of [a political] party.  The Tribunal asked the applicant the year the photo was taken.  She said she was not sure, it was the year of elections, could be 2011, or 2012 or 2013.  The Tribunal put to her that it was surprised, given her evidence that she was politically involved with the UDD, she would not know the year of the election the photo related to. 

19. The Tribunal also put to the applicant that the photos she has provided suggests that her family was well regarded by, and close to, candidates for UDD and this does not appear to be consistent with her claimed fear of harm by them. She said the photo was taken when they had a close relationship and were still in the group. She submits the evidence as evidence that he is a political candidate.

20. The applicant clarified that her role in the group was to recruit students to participate in the protests.  She did not speak at events.  She would talk to her friends and fellow students and ask them to come to the events and they may get support money. She also tried to convince them it was good for the country; if the Red Shirts are in power the existing hierarchy will be demolished.  She recruited about [number] people in this way from 2009 to 2010. 

21. The Tribunal put to the applicant its concern about the plausibility of her claims to be actively recruiting friends and family to an organisation she was afraid of.  In response the applicant explained that by recruiting, she would tell her friends to go along and listen and hold placards. They were not receiving large amounts of money. Her role was only to get them there. If they agreed with the opinions they could stay, otherwise they were free to leave.

22. The applicant told the Tribunal her fear of harm in Thailand remains despite the coup this year.  There is still no peace in her country. The military appointed Prime Minister is only there until next year and then there will be an election.  It will be the same candidates and same parties and the losing party will be unhappy and there will be more protests.

23. With regard to the assault and threats she referred to in her claims, the Tribunal asked where these occurred, in Bangkok or in her home province.  She confirmed they occurred in her home province.  When asked why she could not live in Bangkok then, to avoid these people, she said that the Red Shirt people are all over the country and they have contacts with each other and would be able to track her down.

24. Following the hearing, the applicant submitted further documents in support of her application.

    ·A statement explaining matters arising at the hearing. She explained the photo presented at the hearing of her mother and [a politician] was an important piece of evidence of the close relationship between her mother and this individual associated with the UDD, which broke down due to the change of her family’s political ideology.  She explained that the power of the UDD remains unchanged in her country and they are waiting for the next election, and there will inevitably be violent protests regardless of the results.  Corruption would remain no matter what political parties are elected. She would not be protected if UDD assaulted her. She reiterated the importance of education to her and that is why she stayed in Thailand after she was assaulted in 2010 to finish her degree. She advised she is now enrolled in a [tertiary course] because she cannot afford a [higher level] course. She has no reason to make up a story.  She genuinely fears for her life and violation of her rights in Thailand.

    ·Translations of [the politician’s] name card and election campaign billboard.

    ·Various news articles evidencing corruption and human rights violations in Thailand.

    Hearing on 19 October 2015

25. At the commencement of the hearing the applicant submitted the following further documents:

    ·Documents indicating that she had completed the requirements for a [tertiary] course undertaken between [date] and [date], including a transcript of academic record;

    ·A personal statement, including English translation, addressing the changed political situation in Thailand since the military coup;

    ·Various articles printed from the internet including a piece sourced from Wikipedia relating to the 15 August Bangkok Bombing;  articles relating to Australia’s policies towards refugees; articles relating to violent incidents involving members of the Red Shirts; various articles about a Thai national granted refugee status in New Zealand facing changes in Thailand for defaming the monarchy.   

26. The applicant confirmed her current living circumstances.  She is living in rented accommodation with [others].  She is not working as she continues to have no work permission on her current visa. She continues to rely on money sent to her by her parents, the last amount being sent in 2014.  When asked if she has evidence of these payments, the applicant handed the Tribunal a copy of a bank statement showing a deposit of $[number] (equivalent to approximately [number] Thai bhat) received [in] September 2013.  She said she has received [number] bhat on three occasions from her parents since she arrived in Australia and has used these funds to survive.  In May she completed a [tertiary] course, but she hasn’t studied since then as she has insufficient funds. 

27. The Tribunal clarified with the applicant her address in Thailand prior to coming to Australia.  She lived in Bangkok while she was studying at university but spent her break periods in her home province of [Province 1] with her family.   Her family continue to live in [Province 1] province, at the same address they have always lived.  Her parents are not working since they closed their businesses.  They survive on savings, and have sold assets they previously bought with the money provided by the Red Shirts.  They bought a car and jewellery for her mother with this money.

28. The Tribunal asked the applicant about the money provided to her family by the Red Shirts.  She said they gave money to her family in exchange for them inviting people to participate in their demonstrations and persuading them to support their ideology.  They commenced giving her family money for this purpose from 2009.  They gave it in amounts which [varied] depending on the size and seriousness of the rally or demonstration being organised.  The amount they gave was not based on recruiting any specific number of people. The Tribunal asked if the bank statements provided by the applicant to the Department represented the total amount given to them.  She said that it did not, it was provided as a sample of the money they received.  She said they received money from 2009 until 2011.  The Tribunal pointed out that the bank statements provided cover a period of 9 months in 2010 and showed deposits which totalled over one million Thai bhat already and suggested to her that this does not appear to be consistent with her claim that they gave her family one million Thai bhat in total from 2009 until 2011. In response the applicant said that not all the deposits shown in the statement represent money given by the Red Shirts, as it also included money from her parents business.  When she was asked how the Tribunal can be satisfied that all of the deposits shown were not from the business, the applicant acknowledged that the bank statement does not identify the transferors, but stated it is not possible that all of the money was earned by the business. The Tribunal noted the absence of any evidence about the financial situation of her parents business before it.

1. The applicant asked the Tribunal to consider the articles she submitted regarding the Red Shirt supporter who obtained refugee status in New Zealand.  She submitted that his case supports her claim that people were paid large sums of money to support the organisation.  She suggested that this individual was giving speeches for the Red Shirts, so he is likely to have received far greater amounts than her family which was only involved in inviting people to attend events.  She submitted that he would never have been able to have a lifestyle as he has without significant financial support from the Red Shirts. She said if they received one  million bhat, he is likely to have received at least ten million. The Tribunal put to her this claim appeared to be entirely speculative as she had not provided any evidence to indicate he received money from the Red Shirts or how much.  It said the issue in her case is whether the Tribunal accepts her family received the amount she claims, which appears to be a significant amount of one million bhat, in exchange only for inviting friends and family to events.  She confirmed that this was all that they did in return for the money they received. 

2. Around the end of 2009, after the events in 2009 became less peaceful and increasingly violent, the applicant said she started to want to pull away from the organisation. When she started to ask about doing this, she was told that they would have to return the money plus interest.  She said there was no guarantee that after returning the money they would be able to withdraw their participation as the Red Shirts wanted people to participate.  When asked when she made these enquiries, she said she was afraid initially and only did so towards the end of 2009.  She confirmed that her family used this money to pay for her to come to Australia in March 2010.  She travelled at this time to avoid being in Thailand because of the increasing violence of the situation and she wanted to avoid being there during this time.  When she returned there were consequences.  They came to her house, in [Province 1], and demanded to know where she was, and why she had left at that time.  They punched and kicked her.  The Tribunal queried how they knew that she was not present at this time. It was during university break period and usually she would be at home in [Province 1] so they knew. The applicant confirmed that her parents were present in this period.  When asked if they continued to recruit, she said her parents were old and were no longer by this stage able to invite more people, whereas she being a student, had access to more people, and that is why they were interested in her. 

3. The Tribunal asked the applicant about the threats faced by herself and her parents. She confirmed that her parents have not faced any threats since the coup in May 2014. Previous to that they did face problems.  People came to their home in April 2011 after she came to Australia. Her father told them she had gone overseas.  They became angry and demanded that he return the money.  They threatened him, damaged personal property and took her mother’s jewellery.   The Tribunal asked the applicant if her parents repaid the money in the face of these threats. She said they did not.  When asked why, she said they did not think that returning the money would lead to a peaceful withdrawal for them from the organisation or a safe life.  The family believed that a group which is capable of violently burning homes of people would be unlikely to leave them alone even if they returned the money.  The Tribunal asked the applicant if her parents continued to live at the same address in [Province 1].  She confirmed that they did.  It noted she has not claimed that they have been physically harmed to date, suggesting that there is not the interest in them as claimed.   In response the applicant said they continued to harass her parents, forcing them to close their [businesses]. She said they decided these things would still happen to them even if they paid the money back and so it was better to keep it.  The Tribunal put to her that it found this logic difficult to accept.  If they believed the group was so dangerous, would it not be better to return the money, or as much as they could at this point. It suggested to her that if her parents were genuinely fearful of these people they would have repaid money to them. It put to her that it may find her claims not plausible for this reason. 

4. By way of explanation the applicant said that, as detailed in the article she has submitted, the leader of the Red Shirts, Thaksin Shinawatra is a very wealthy person.  He had assets of 15 billion bhat before taking office, and even more while in office.  This amount of money (the one million given to her family) is not important to him, what he wants is people to support the organisation. Therefore, she claimed, it was not the money the Red Shirts wanted from her family but her continued involvement.

5. When asked what she feared if she returned to Thailand, the applicant said she fears they will carry out the threats made to her that they would force her to work as a prostitute to repay the money.  Even though the military is now in power, this group does not disappear.  There will be elections one day in the future and the groups will clash again.  She fears the Red Shirts will force her to support them, or want to make an example of her for abandoning them.

6. When asked why the authorities cannot protect her from such threats by the Red Shirts as they are no longer in power, she said that all the players are the same.  The authorities are, or can be, paid off.  Police take bribes and the Red Shirts have money behind them so she will not be protected by the authorities.

7. The Tribunal put to the applicant that if it accepts that the Red Shirts gave her family one million bhat and may harm her for that reason in the future, a further issue it may have to consider is whether there is a Convention nexus for their actions, or whether the authorities would fail to protect her for a Convention reason.  It put to her that if the Tribunal concludes that the reason she may face harm from the Red Shirts is because she and her family failed to return their money, there may not be the requisite Convention nexus for the purposes of the refugee definition. In response the applicant stated that the Red Shirts actions are because of her political opinion not because of the money owed to them.

8. The Tribunal asked if there is any other reason she fears return.  She said that she fears harm from the Red Shirts and she cannot return because of this.  If she did not have this fear she would not remain in Australia, away from her parents.  If she wanted to stay in Australia she could have found a person to marry and this would have been much easier.  She submits her claims are genuine and she cannot return because she has a genuine fear of harm.

   Independent Information

9. Former Thai Prime Minister Thaksin Shinawatra was ousted during late 2006.  Since that time, the country experienced waves of street protests, violence and occupation of key sites[1] by both the Red Shirts who are said to support Thaksin and his populist policies, and the royalist Yellow Shirts whose weeks of protests assisted in ousting him.[2]

   [1] “Factbox: Key Political Risks to Watch in Thailand” 2011, Reuters, 7 February, – Accessed 21 February 2011 – Attachment 1

   [2] International Crisis Group 2010, Bridging Thailand’s Deep Divide, Asia Report N°192, 5 July, p. 12 -14 – Attachment 2

10. In 2011, Yongluck Shinawatra, Thaksin’s younger sister, was elected prime minister under the Pheu Thai Party.[3] 

    May 2014 Military Coup

    [3] Nguyen, P, Poling, G B and Rustici, K B 2014, Thailand in Crisis: Scenarios and Policy Responses, Center for Strategic and International Studies, July 2014http://csis.org/files/publication/140707_Nguyen_ThailandInCrisis_Web.pdf

11. On 22 May 2014, Thailand’s army chief General Prayuth Chan-ocha carried out the country’s 12 successful coup d’etat, two days after declaring martial law. This was a culmination of popular protests, counter protests and legal maneuverings against the government of Prime Minister Yingluck Shinawatra that began in November 2013.  Tensions were running extremely high leading up to the coup between the antyi-government protest movement (the latest incarnation of the Yellow Shirts – and the pro-government Red Shirt faction, with an estimated 28 people killed in clashes between November and May and protest camps in Bangkok becoming increasingly well armed.[4]  Following the events of May 2014 there has been limited conflict between the Red Shirts and Yellow Shirts, including in Udon Thani in Thailand’s north-eastern ‘Isaan’ region.[5]

    [4] “In for the Long Haul” 31 may 2014, the Economist, See, for example: Nguyen, P, Poling, G B and Rustici, K B 2014, Thailand in Crisis: Scenarios and Policy Responses, Center for Strategic and International Studies, July < Accessed 16 July 2014 <CISLib29032>; ‘A new beautiful Thailand?’ 2014, Deutsche Welle, 20 August < land/a-17868279?maca=en-rss-en-asia-5133-rdf> Accessed 21 August 2014 <CX324841>

12. As at September 2015, Thailand was still ruled by Prime Minister Prayuth Chan-ocha.  Recent articles suggest that a general election may not be held until mid 2017 at the earliest, one year later than the junta initially promised[6].  The Red Shirts opposition movement is still around but ‘laying low for now’ waiting for the next election,[7] though its rural heartland in northeast Thailand is struggling as a result of the military government’s economic policies, with rice farmers left with mounting debts, retailers struggling  and rising crime levels, all stirring discontent and the threat of protests.[8]

    Red Shirts

    [6] CXBD6A0DE13883: "Thailand's reluctant leader prolongs his grip on power", Reuters, 15 September 2015, (Opens in a new window)

    [7] CXBD6A0DE13890: "Thaksin tells Thailand's red shirt opposition - 'play dead' for now", Reuters, 19 September 2015, (Opens in a new window)

    [8] CXBD6A0DE14210: "Rising anger in Thailand's boom-to-bust northeast", Reuters, 30 September 2015, (Opens in a new window)

13. Pro-democracy group the United Front for Democracy Against Dictatorship (UDD), also known as the Democratic Alliance Against Dictatorship (DAAD), is more commonly known as the Red Shirts, again based on the colour of their clothing.[9] Sources report the Red Shirts as predominantly supporting Thaksin Shinawatra.[10]  Their political platform follows a largely socialist logic: Professor Kevin Hewison of the University of North Carolina states that the Red Shirts have “increasingly proclaimed Thai society unfair, unequal and unjust” and that Thaksin Shinawatra was largely seen as a leader who aimed to assist the downtrodden in Thai society.[11]  The Red Shirts are said to generally support Thaksin “because of his mould-breaking populist policies while in office from 2001-2006”.[12]   Such policies, seen to address everyday needs of the Thai people, included subsidised health care and microfinance loans.[13]  The Red Shirts claim to be “fighting against intervention in politics and the judicial system by an unelected conservative elite whom they accuse of operating with impunity and conspiring to topple democratically elected governments”. Specifically, the Red Shirts believe that the coup against Thaksin, and the dissolution of both the Thai Rak Thai Party and the People’s Power Party, “were all masterminded by his influential opponents, among them royal advisers, military generals and aristocrats”.[14] The Red Shirts’ membership base is largely thought to comprise the rural poor and urban working class.

    [9] “Thailand’s “Red Shirt” Movement” 2010, Reuters AlertNet, 10 May – Accessed 6 October 2010 – Attachment 9

    [10] International Crisis Group 2010, Bridging Thailand’s Deep Divide, Asia Report N°192, 5 July, p. 13 –  Attachment 2

    [11] Hewison, K. 2010. “Rebellion, Repression and the Red Shirts” 24 May, East Asia Forum website, – Accessed 14 February 2011 – Attachment 10

    [12] “Thailand’s “Red Shirt” Movement” 2010, Reuters AlertNet, 10 May – Accessed 6 October 2010 – Attachment 9

    [13] International Crisis Group 2010, Bridging Thailand’s Deep Divide, Asia Report N°192, 5 July, p. 13 –  Attachment 2

    [14] “Thailand’s “Red Shirt” Movement” 2010, Reuters AlertNet, 10 May – Accessed 6 October 2010 – Attachment 9

14. The Red Shirts consist mostly “of members of the rural poor and urban working class” from the Northern and North-eastern regions of Thailand. [15] Divisions within the group exist as to whether the actual return to power of Thaksin himself is desirable.[16]  The Red Shirts also claim “to have spies in the police, the government and the military tipping them off about developments”. Reuters states that the Red Shirts have proven “to be a well-organised and powerful extra-parliamentary force, holding regular protests in Bangkok and in their northern and North-eastern strongholds, sometimes attracting tens of thousands for days, if not weeks”.

    Recruitment

    [15] “Thailand’s “Red Shirt” Movement” 2010, Reuters AlertNet, 10 May – Accessed 6 October 2010 – Attachment 9

    [16] Hewison, K. 2010. “Rebellion, Repression and the Red Shirts” 24 May, East Asia Forum, – Accessed 14 February 2011 – Attachment 10

15. The Tribunal was unable to locate any reports of the Red Shirts forcibly recruiting people into their movement.  However, a number of reports indicate that the Red Shirts regularly rally for recruits via community radio stations and through local residents, particularly in Thailand’s north-east. Reuters states that the Red Shirts have “scores of ‘political schools’ across the country”, as well as “organisations at national, provincial, district and village levels responsible for fund-raising and recruiting”. In addition, “[c]ommunity radio stations [are] used to recruit supporters and mobilise people for rallies”.[17] A March 2010 article reports a recruitment drive carried out by the Red Shirts prior to demonstrations. The movement reportedly used “motorbikes and pickup trucks to distribute leaflets in a bid to recruit more red-shirt supporters”. In particular, the Red Shirts “want to expand their mainly rural support base”.[18] An ABC News report similarly states that in April 2010, “[a]bout 2,000 Red Shirts had left central Bangkok to spread their campaign to others”.[19] Red Shirt members also carry UDD identification cards.[20]

    [17] “Thailand’s “Red Shirt” Movement” 2010, Reuters AlertNet, 10 May – Accessed 6 October 2010 – Attachment 9

    [18] “Red Thai Protesters in Recruitment Drive” 2010, Euronews, 19 March  – Accessed 6 October 2010 – Attachment 14

    [19] “Thai Soldier Killed in Red Shirt clashes” 2010, ABC News, 29 April

    [20]“Thailand’s “Red Shirt” Movement” 2010, Reuters AlertNet, 10 May – Accessed 6 October 2010 – Attachment 9

16. Reuters reports that “[t]he presence of shadowy, black-clad gunmen during the…clashes suggests to some [that] the red shirts have a paramilitary arm”; however the Red Shirts have denied any knowledge of “the mysterious assailants”. Nevertheless, the Thai government asserts that the Red Shirts have “hundreds of assault rifles and grenade launchers stashed away, many stolen from fleeing troops during the riot”.[21]

    [21] “Thailand’s “Red Shirt” Movement” 2010, Reuters AlertNet, 10 May – Accessed 6 October 2010 – Attachment 9

17. Mass rallies took place in Bangkok from March-May 2010 which ended with a military crackdown.  Reuters reported that the Red Shirts proved to be a formidable force occupying roughly 3 sq km (1.2 sq mile) of a luxury hotel and shopping district from April 3 in the latest protest, which got off the ground on March 14 when 150,000 protesters flooded into Bangkok, most from far-flung provinces.  Another Reuters article refers to this incident as “Thailand’s worst political violence in modern history”.[22]

    [22] “Factbox: Key Political Risks to Watch in Thailand” 2011, Reuters, 7 February, – Accessed 21 February 2011 – Attachment 1

    FINDINGS AND REASONS

18. A summary of the relevant law is set out at Attachment A.

19. The Tribunal has considered all the evidence before it, including the applicant’s written claims and oral evidence to the delegate and the Tribunal, and all of the documents submitted in support of the application, and independent information as referred to above.

    Nationality

20. On the basis of the applicant’s oral claims and passport, the Tribunal accepts the first named applicant is a citizen of Thailand and assess her claims against Thailand.   

    Consideration of applicant’s claims

21. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. 

22. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

23. The applicant has advanced the following claims in the present application: she was involved with the United Front for Democracy against Dictatorship (UDD) or ‘Red Shirts’ political organisation from 2009.  Her parents, who had been involved with this group since 2006, received financial incentives of 1 million Thai bhat from the Red Shirts.  In exchange they were expected to invite and recruit family and friends to attend events and demonstrations. As the protests became more and more violent, the applicant tried to leave the group.  She travelled to Australia to avoid the demonstrations in March 2010.   When she returned to Thailand in June 2010, members of the Red Shirts group came to her family’s home to express their anger at her absence during the protests from March to May 2010.  They assaulted her and threatened her if she did not continue to recruit for them.  The applicant travelled to Australia in 2011 to get away from the Red Shirt group as she was in fear for her safety.  They continued to harass and threaten her parents and they were forced to close their business. The applicant’s parents have not repaid the money received from the Red Shirts.  The applicant fears harm at the hands of the Red Shirts if she returns to Thailand.  She fears they will seek to make an example of her for leaving the organisation. The applicant fears they will force her into prostitution. She does not believe the authorities can protect her because they are associated with the Red Shirts in her local area and even if they are not, they can and will be bribed by the Red Shirts. 

1. For the reasons explained below the Tribunal has concerns about the credibility and plausibility of the applicant’s claims about her family’s involvement with, and receipt of financial support from, the UDD.  It does not accept that she or her family have a significant profile with the UDD and it does not accept that the UDD has any interest in her or her family. The Tribunal does not accept that the applicant was assaulted in June 2010 by the Red Shirts.  It does not accept that the applicant’s parents have been harassed or threatened by the Red Shirts because of her absence from the country in this period.  On the basis of its findings relating to her claims, the Tribunal does not accept that the applicant has a genuine fear of harm from the Red Shirts or that there is a real chance she will face persecution by them, or a real risk she will face significant harm, in future if she returns to Thailand.

   Claims of involvement with UDD (Red Shirts) and receiving financial support from them

2. The applicant has claimed that she has been involved with the UDD since 2009, and her parents since 2006, and that from 2009 her family was given financial support in exchange for their role in inviting people to attend protests.  She told the delegate and the Tribunal that the amount received in total was one million Thai bhat and in support of this, she provided untranslated bank statements highlighting deposits of money received in the period January to September 2010. The Tribunal notes the amounts highlighted by the applicant in the bank records provided total around 920,000 Thai bhat, and that the statements show total  deposits in excess of one million bhat .    

3. For a number of reasons, the Tribunal has concerns about the applicant’s claim her family receive financial support from UDD in the amount of one million bhat. It considers that this amount is a significant sum of money for, on her own evidence, the minimal role played by the applicant and her parents. The applicant told the Tribunal that in exchange for this money, she and her family were required to invite people to participate in their demonstrations and persuade them to support their ideology, and that is all she and they did.  She told the Tribunal that her own role was to recruit students at university and she recruited a total of [number] people between 2009 and 2010. The Tribunal considers it implausible that the applicant’s family would have received the claimed amount for such minimal involvement.

4. There are also a number of internal inconsistencies and contradictions in her evidence about the timing and amount of money given to her family that contribute to the Tribunal’s doubts about the truthfulness and plausibility of the applicant’s claim.  For example, in her oral evidence to the Tribunal she said the Red Shirts commenced giving her family money for their involvement from 2009 up until 2011 and that they gave it in amounts which [varied] depending on the size and seriousness of the rally or demonstration being organised.  She provided untranslated bank statements highlighting deposits of money received in the period January to September 2010, as a sample of deposits paid to the family. In her written and oral evidence to the Tribunal the applicant said she started to become disillusioned with the Red Shirts in 2009 as the protests became more violent and disruptive. She referred to the cancellation of the ASEAN Summit in April 2009 [23] as the point from which she started to feel uncomfortable, and told the Tribunal that at the end of 2009 she made enquires about withdrawing from the organisation but was told at this time that they would have to return the money plus interest.  In her father’s statement dated [in] February 2014, he says from 2009 he did not want his family to participate any more, but they continued to attend meetings and demonstrations throughout 2009 because he was told they needed to return all the money given to the family. He sent the applicant to Australia in March 2010 to protect her from what may happen in the demonstrations.  She travelled again to Australia from October to November 2010.

   [23] >

   The Tribunal considers that the evidence from the applicant and her father that they accepted financial inducement for their participation during 2009, and her absence from the country for significant periods during 2010, is inconsistent with her evidence of the bank statements showing deposits in excess of 920,000 bhat in the period of January to September 2010.  When this was discussed with the applicant at the hearing, she explained that not all the deposits shown in the statement represents money given by the Red Shirts, as it also included money from her parents business, and the bank statement provided was only a sample of the money received. The Tribunal observes that there is no other evidence before it showing deposits in 2009, or the income flow from her parents business and therefore it is not satisfied about the source of the deposits on the material before it.  It also finds that it implausible that the bulk of the one million bhat she claims was received was paid to her parents after they had made enquiries about pulling back at the end of 2009 and finds it implausible that the organisation would have continued to pay substantial sums into her family’s account in 2010 when the applicant was not present in the country.

5. Furthermore, the Tribunal has not located any independent evidence to support that the Red Shirts are involved in forcible recruitment into their movement.  It accepts, on the basis of independent information considered, that the base of the Red Shirts is drawn from  members of the rural poor and urban working class from the Northern and North-eastern regions of Thailand, and that they regularly rally for recruits through local residents, particularly in Thailand’s north-east.  It is therefore prepared to accept that the applicant and her parents, coming from the province of [Province 1], which is [one] of the northeastern provinces of Thailand,[24] may have been supporters of the Red Shirts, and accepts that as the violence increased, she and/or they may have become disillusioned with the party and sought to distance themselves from their actions and rallies. 

   [24] [Source deleted].

6. The applicant also produced to the Tribunal, in support of her claims, a photograph showing her mother with an MP of [a political] Party.  She told the Tribunal that the photo was taken at the time of the election, although when asked what year that was, she was unable to specify the exact year. The Tribunal notes independent information referred to above (paragraph 38) indicates that an election was held in 2011. It considers the applicant’s inability to answer this question definitely reflects poorly on her credibility for several reasons. Her inability to specify the year of the election suggests she was not as politically involved in what was going on in Thailand in this period as she has claimed. The photo showing her mother with this UDD [member], posing with him for a picture at the time of the 2011 election also appears to contradict her evidence that she and her family had become disillusioned with the UDD by the end of 2009.  While the Tribunal has considered the possibility, raised by the evidence, that the applicant’s mother posed for the photo on the basis of her long term friendship with the [person] despite having become disillusioned with the UDD; it is not convinced that she would have done so if she truly feared for her and her family’s safety from this group at that time.  Rather, the Tribunal considers that this photo suggests that the applicant’s parents were affiliated with, and supportive of the party at least up to the time of the 2011 election and is of the view that this contradicts the applicant’s claims that they were fearful of this group at this time.

7. Having regard to all of the above, and particularly the internal inconsistencies and contradictions in the applicant’s evidence, the Tribunal rejects the applicant’s claim that the UDD paid her family one million Thai bhat in exchange for their participation and assistance with recruitment.

   Assault in June 2010

8. The applicant claims that, after she returned from Australia in June 2010, members of the UDD came to her family’s home and accused her of being selfish and turning her back on them and she was kicked and punched in the stomach and her safety threatened if she disappointed the group again. 

9. Having rejected the applicant’s claim above regarding financial support given by the UDD, the Tribunal also does not accept the applicant’s claim that they assaulted her in June 2010 for being disloyal to them and leaving the country during the period of the March protests. It finds this claim lacking in credibility and plausibility.  On her own evidence she had a minimal role in the organisation. She told the Tribunal her role was limited to recruiting students at university and that she recruited a total of [number] people from 2009 to 2010.  Having regard to independent information (above) about the scale and size of the rallies that took place in the period March to May 2010, the Tribunal does not accept the applicant had a profile in the organisation that would have brought her to their attention upon her return to Thailand in June 2010 and it does not accept she was assaulted as claimed in June 2010.

   Return to Thailand from Australia in 2010 and delay in applying for protection

10. The Tribunal has also taken into consideration the applicant’s return to Thailand in November 2010 and the time it took her to make her application for protection in October 2013. Her dates of travel in 2010 and 2011 indicate she was not in a particular rush to leave Thailand, following the grant of Australian visas.  This, together with the two and a half year delay after her arrival in February 2011 in making the present application, is not consistent with her having a genuine fear of harm. The Tribunal has taken into consideration her explanations when this was put to her at the hearing.  She said that exam commitments in February and September 2010 delayed her departure that year. She argued that education is very important to her and she wanted to complete the requirements for her degree in Thailand and that is why she returned in June 2010 and again in November 2010.  Her explanation for not departing immediately in January 2011 was also related to finishing the requirements for her degree.  Regarding the delay in lodging her protection visa after she came in 2011, the applicant said she was not aware of the option of seeking protection and after her student visa was cancelled, she did not know what path to take.

11. The Tribunal has carefully considered the applicant’s explanations for her actions in returning to Thailand in 2010 and for not making her application for protection sooner after her arrival in Australia.  It notes that while she has emphasised the importance to her of education, she ceased her study within one month of her arrival in February 2011 on a student visa, and remained in Australia without any visa for a significant period before making the present application.  While she has also given evidence to the Tribunal of completing a [tertiary] course between [date] and [date], the Tribunal observes that this is the first course she has completed since coming to Australia on a student visa in 2011, 4 years ago.  Despite some concerns about the credibility of her explanations, the Tribunal is prepared to accept that she wanted to complete her course in Thailand.  However, it considers that if she was genuinely fearful of serious harm by the Red Shirts, and especially if they had assaulted her as claimed in June 2010, she would not have returned in November 2010.  The Tribunal finds that the applicant’s return to Thailand in November 2010 and the delay in applying for protection are not consistent with her claim that she left Thailand because of fear of imminent harm and is not satisfied that she has not made this application as a means of extending her stay in Australia.

    Claim of harassment and threats to her parents since her departure

12. The applicant claims UDD has continued to harass and threaten her parents and they were forced to close their business. Her father claimed in his statement that a member of the Red Shirts urinated in front of his house and threw a bag of stools through the gate.  However, the applicant also gave evidence that her parents did not repay any money to the Red Shirts, and that her parents have sent her 400,000 bhat on three occasions since her arrival in Australia.  She told the Tribunal that her parents reside at the same address they have always lived at in their province.  When asked if they had experienced any threats or harm, since her departure, she said people came to their home in April 2011 and demanded that he return the money. She said he was threatened, his personal property was damaged and they took her mother’s jewellery. When the Tribunal asked if her parents repaid the money in the face of these threats, she said they did not because they did not think that returning the money would lead to a peaceful withdrawal from the organisation or a safe life. The applicant confirmed that her parents have not faced any threats since the coup in May 2014. 

13. The Tribunal has considered the applicant’s claim that her parents were harassed and threatened and that they were forced by UDD to close their business.  It rejects these claims on the basis that they are not plausible or credible.  The Tribunal considers it is not plausible that her parents would not have returned money if it was given to them by UDD in the face of actual, or threats of, serious harm against them or their only child.  On her own evidence the applicant’s parents have sent her amounts totalling 1.2 million bhat in financial support since her arrival in Australia and they continue to reside at the same address in their home province. The fact that they have been able to send her such sums of money and continue to live at the same address, which would be known to the UDD, suggests they are not of particular interest to them.  For these reasons the Tribunal rejects the applicant’s claims her parents have been harassed and threatened and forced to close their business.

    Fear of future harm

14. The combination of the matters above leads the Tribunal to conclude that the applicant has not been truthful in her evidence about financial support provided to her family by the UDD, their actions against her, and her fears of returning to Thailand. The applicant says she fears harm at the hands of the UDD if she returns to Thailand.  She fears they will seek to make an example of her for leaving the organisation. The applicant fears they will force her into prostitution. The Tribunal has not accepted that the UDD gave the applicant’s family financial support as claimed and it has not accepted that she was assaulted by the UDD for reasons of disloyalty.  On the basis of these findings, the Tribunal does not accept that the applicant has a profile of interest to the UDD or that they have any interest in the applicant or her family in the future.  It does not accept that there is a real chance the applicant will face serious harm from the UDD because she left their organisation. It does not accept there is a real chance they will force her into prostitution. Having found that she has no profile of interest to the UDD, the Tribunal considers these fears to be purely speculative and there is no objective basis to find that she will suffer this harm in the future.

15. Since the application was made, the Tribunal notes there has been a military coup in Thailand and the Pheu Thai Party, associated with the UDD, is no longer in power.  It has considered the applicant’s claims that, despite this development, the power of the UDD remains unchanged and her fears of harm at their hands continues on the basis that they may come back into power in a future election, or if they do not, they will engage in violent protests as they did previously.  Given its findings above that it does not accept the applicant is of interest to the UDD, the changed political situation makes no difference to the Tribunal’s conclusions regarding the applicant’s fear of harm from them in future, although if anything, it makes the chance of harm even more remote.

16. For these reasons, he Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons for any Convention reason, now or in the reasonably foreseeable future.

    Complementary protection criteria

17. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act.  The Tribunal has not accepted that the UDD gave the applicant’s family financial support as claimed.  It does not accept that the applicant has a profile of interest to the UDD or that they had or have any interest in the applicant or her family in the future. On the basis of these findings, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if she returns to Thailand now or in the reasonably foreseeable future. 

    CONCLUSIONS

18. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

22. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

23. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

24. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

1. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

2. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

3. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

4. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

5. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

6. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

7. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

8. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

11. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    
    

– Accessed 6 October 2010 – Attachment 15